Chapter 18.60
ADULT ENTERTAINMENT ENTERPRISES
Sections:
18.60.060 Application forms – Information required.
18.60.070 Performance standards and requirements.
18.60.080 Administration and enforcement.
18.60.010 Purpose and intent.
This land use chapter treats adult entertainment enterprises differently from other commercial enterprises because of markedly negative secondary effects upon their surrounding communities and neighborhoods. These distinctions will also provide for reasonable alternative avenues of communication which do not violate the First and Fourteenth Amendments of the United States Constitution.
Its purpose is to protect the general public health, safety and welfare of the citizenry of Cowlitz County, Washington through the regulation of adult entertainment enterprises through zoning and other land use regulations.
The regulations set forth in this chapter are not designed to suppress the expression of unpopular views and behaviors, but rather to minimize children’s and the general public’s exposure to negative effects associated with adult entertainment enterprises, to prevent sex-related crimes, vandalism, and criminal activities related to alcohol and drug abuse, to protect the county’s retail trade, to maintain property values, to minimize impacts on police services, to minimize sexual harassment of the public, and to protect and preserve the quality of the county’s residential neighborhoods, commercial districts, and recreational activities. [Ord. 94-218, § 2, 12-12-94.]
18.60.020 Amendments to the Cowlitz County Comprehensive Plan relating to sexually oriented adult entertainment enterprises.
This chapter amends the following commercial and industrial land use policies of the Cowlitz County Comprehensive Plan to read as follows:
A. Commercial Land Use Policy 4: Adult entertainment commercial activities, except sexually-oriented adult entertainment enterprises, are encouraged to develop in region-serving commercial areas. Such activities are not encouraged in a neighborhood commercial area. Sexually-oriented adult entertainment enterprises should be encouraged to locate in those areas of the County zoned for Heavy Manufacturing land use.
Rationale – Taverns and other forms of non-sexually oriented adult entertainment are potential nuisance uses and are inappropriate in residential areas.
B. Industrial – Classification The purpose of this classification is to assure the presence of adequate amounts of land for industrial growth and sexually-oriented adult entertainment enterprises in the County. Evidence reveals that sexually-oriented adult entertainment enterprises are associated with increases in sex-related crimes including rape, indecent exposure, obscene conduct, child molestation, adult molestation, and prostitution. These activities jeopardize the safety of children and adults near these areas. In addition, evidence also indicates that sexually-oriented adult entertainment facilities adversely impact other commercial and residential properties as well as recreational facilities in close proximity to them by increasing traffic, vandalism, and blight in these adjacent neighborhoods. Because areas used for heavy industrial purposes do not encourage recreational or residential facilities or activities geared toward families or children, the negative secondary impacts associated with sexually-oriented adult entertainment enterprises will have the least impact on heavy manufacturing zoned areas.
It is also designed to prevent the encroachment by other uses on these lands which would make conversion to industry difficult and perhaps impossible. Agriculture is a desirable interim use of these lands prior to conversion to industry since it causes few problems in conversion and retains open space in the interim. For these reasons, residential development and commercial development, except sexually-oriented adult entertainment enterprises, not directly supportive of industrial activity are discouraged.
[Ord. 94-218, § 3, 12-12-94.]
18.60.030 Definitions.
For purposes of this chapter the following definitions shall apply:
“Adult arcade” means an enterprise where, for any forms of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines, for viewing by five or fewer persons each, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
“Adult cabaret” means a nightclub, bar, restaurant, or similar commercial enterprise, whether or not alcoholic beverages are served, which features: (1) persons who appear nude or semi-nude; or (2) live performances which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; or (3) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
“Adult entertainment enterprise” means any commercial or retail enterprise which (1) offers entertainment or services, including rooms, readily available for purchase, rental, viewing, or use by patrons of the establishment; and (2) is represented to be or is primarily in the business of offering services which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas and exclude minors by virtue of age. “Adult entertainment enterprises” shall include, but not be limited to, the following: adult arcade, adult cabaret, adult mini theater, adult motel, adult motion picture theater, adult panoram establishment, adult theater, live adult entertainment enterprise, massage parlor, nude or semi-nude model studio, sexual encounter center, and sexual encounter establishment.
“Adult mini theater” means an enclosed building with a capacity of less than 50 persons, a portion of an enclosed building with a capacity of less than 50 persons, or an outdoor theater with a capacity of less than 50 persons used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined in this chapter for observations by patrons therein.
“Adult motel” means a hotel, motel, or similar commercial enterprise which:
1. Offers accommodations to the public for any form of consideration and provides patrons with (a) closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas; and (b) which has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or
2. Offers sleeping rooms for rent on an hourly basis; or
3. Allows tenant(s) or occupant(s) of a sleeping room to sub-rent on an hourly basis.
“Adult motion picture theater” means an enclosed building with a capacity of 50 or more persons, a portion of an enclosed building with a capacity of 50 or more persons, or an outdoor theater with a capacity of 50 or more persons used for presenting motion picture films, video cassettes, cable television, or any other such visual media distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined therein for observation by patrons therein.
“Adult panoram establishment” means any building or portion of a building which contains device(s) which for payment of a fee, membership fee, or other charge, is used to exhibit or display a picture, view, or other graphic display distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined therein.
“Adult theater” means a concert hall, theater, auditorium, or similar commercial enterprise which, for any form of consideration, regularly features persons who appear nude or semi-nude, or live performances which are distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined in this chapter for observation by patrons therein.
“Board” means the Board of Commissioners of Cowlitz County.
“Board of Adjustment” means the Board of Adjustment of Cowlitz County.
“Building Official” means the Codes Administration Division Manager, or his designee, of Cowlitz County’s Department of Building and Planning.
“City” means the incorporated cities of Cowlitz County, Washington.
“County” means Cowlitz County, Washington.
“Department” means the Department of Building and Planning, Cowlitz County.
“Director” means the Director of the Cowlitz County Department of Building and Planning or designee.
“Employee” means any and all persons, including managers, entertainers, and independent contractors who work in, render services to, and have direct interaction with clientele of the adult entertainment enterprise.
“Live adult entertainment enterprise” means any building or portion of a building which contains any exhibition or dance wherein any employee or entertainer is unclothed or in such attire, costume, or clothing so as to expose to view any portion of the female breast below the areola, or male or female genitals, vulva, anus, and/or buttocks, or any portion of the pubic hair and which exhibition or dance is for the benefit of member or members of the adult public, or advertised for the use or benefit of a member of the adult public, held, conducted, operated, or maintained for profit, direct or indirect.
“Massage parlor” means an establishment where, for any form of consideration, massage, alcohol rub, fomentation, electric or magnetic treatment, or similar treatment or manipulation of the human body is administered, unless such treatment or manipulation is administered by a medical practitioner, chiropractor, acupuncturist, physical therapist, or a licensed massage practitioner operating pursuant to Chapter 18.108 RCW. This definition does not include an athletic club, health club, school, gymnasium, reducing salon, spa, or similar establishment where massage or similar manipulation of the human body is offered as an incidental or accessory service.
“Nonconforming use” means an adult entertainment enterprise which lawfully existed prior to the enactment of this chapter, and is maintained after the effective date of this chapter although it does not comply with the adult entertainment enterprise land use regulations set forth in this chapter.
“Nude or semi-nude model studio” means any building or portion of a building where person(s) appear nude or semi-nude or displays specified anatomical areas, for money or any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons.
“Nudity” means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the areolae, or the depiction of covered male genitals in a discernibly turgid state.
“Obscene” means an act or expression which:
1. The average person, applying contemporary community standards, would find when considered as a whole, appeals to the prurient interest; and
2. Explicitly depicts or describes patently offensive representations or descriptions of:
a. Ultimate sexual acts, normal or perverted, actual or simulated, or
b. Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital area, or
c. Violent or destructive sexual acts including but not limited to human or animal mutilation, dismemberment, rape or torture; and
3. When considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value.
“Semi-nude” means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
“Sensitive land uses” means those land uses which are particularly sensitive to the negative secondary impacts associated with adult entertainment enterprises and include the following:
1. Residences,
2. Residentially zoned areas located either in the county or city,
3. Public and private schools and day care institutions,
4. Public parks and playgrounds and commercial recreational uses,
5. Churches or other religious facilities or institutions.
“Sexual encounter center” means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration specified sexual activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nudity.
“Sexual encounter establishment” means an establishment other than a hotel, motel, or similar establishment offering public accommodations, which, for any form of consideration, provides a place where two or more persons may congregate, associate, or consort to perform specified sexual activities. This definition does not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in sexual therapy.
“Specified anatomical areas” means and includes any of the following:
1. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, vulva, or female breasts below a point immediately above the top of areolae; or
2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
“Specified sexual activities” means and includes any of the following:
1. The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, vulva, or female breasts; or
2. Sex acts, actual or simulated including sexual intercourse, oral copulation, or sodomy; or
3. Human masturbation, actual or simulated; or
4. Human genitals in a state of sexual stimulation, arousal, or tumescence; or
5. Excretory functions as part of or in connection with any of the activities set forth in this subsection. [Ord. 94-218, § 4, 12-12-94.]
18.60.040 Licensing.
A. Except as provided in subsection D of this section, after the effective date of this chapter, no adult entertainment enterprise shall be operated or maintained in the unincorporated areas of the county without first obtaining an operating license issued by the Cowlitz County Sheriff’s Office.
B. A license shall be issued only for one adult entertainment enterprise located at a fixed place. Any person, partnership, or corporation which desires to operate more than one adult entertainment enterprise must have a license for each.
C. No license or interest in a license may be transferred to any person, partnership, or corporation.
D. All adult entertainment enterprises existing at the effective date of the ordinance codified in this chapter must submit an application for a license within 90 days of the passage of the ordinance. If an application is not received within the 90-day period, the existing adult entertainment enterprise shall cease operation. [Ord. 94-218, § 5, 12-12-94.]
18.60.050 Applicability.
Any person proposing to develop an adult entertainment enterprise in the unincorporated areas of the county shall first apply for and receive site plan approval from the Director. All subsequent construction shall comply with applicable county codes and the approved site plan. [Ord. 94-218, § 6, 12-12-94.]
18.60.060 Application forms – Information required.
Application forms for obtaining the required site plan approval for any adult entertainment enterprise shall be provided by the Department. A complete application shall contain the following information:
A. Name, address, and telephone number of the applicant and all persons owning an interest including all individuals having a corporate or partnership interest in the property;
B. A legal description of the property including section, township and range, parcel and tax lot numbers, and acreage;
C. The ingress and egress from existing and proposed private or public roads;
D. A current assessor’s map, including the scale, of the property and surrounding parcels within 600 feet;
E. Adjacent land uses and zoning of all properties located within 600 feet of the boundaries of the subject property;
F. A site plan drawn to scale showing the proposed building(s), the location of advertising signs, the location of parking areas and the number of parking spaces, lighting plans for parking areas, entrances, exits, and fences;
G. Profile drawings of all sides of all proposed buildings, showing entrances, windows and attached signs;
H. Drawings of all signs;
I. Documentation that no other adult entertainment enterprise or non-adult entertainment enterprise is operating in the same building, structure, or portion thereof of the building; and
J. A completed SEPA checklist, unless the permit is exempted under CCC 19.11.040(B)(3). [Ord. 94-218, § 7, 12-12-94.]
18.60.070 Performance standards and requirements.
A. Application of Standards. After the effective date of the ordinance codified in this chapter, any building, structure, or tract of land developed, constructed, or used for any adult entertainment purposes as defined in this chapter shall comply with the following performance standards. However, these standards are only minimum, and stricter standards may be required by other regulations, including building codes, fire codes, or regulations governing sewage disposal or water service, and Chapter 19.11 CCC.
1. Locational Requirements. Adult entertainment enterprises shall be permitted only within the unincorporated areas of the county that are zoned for heavy manufacturing and only if they meet all of the locational requirements set forth in this section.
a. Adult entertainment enterprises shall be prohibited within 600 feet of any sensitive land uses of the unincorporated areas of the county or city.
b. Adult entertainment enterprises shall be prohibited from locating within 600 feet of any other adult entertainment enterprise.
c. The distance provided in this chapter shall be measured by following a straight line, without regard to intervening buildings, from the nearest point of the parcel upon which the proposed adult entertainment enterprise is to be located, to the nearest point of the parcel containing the sensitive land use or another adult entertainment enterprise.
In the event an adult entertainment enterprise is legally established in accordance with the requirements of this chapter and (1) a sensitive land use locates within the required separation distance or (2) boundaries for residential zones in the county or city are modified, a legally established adult entertainment enterprise shall be considered conforming.
2. Building Facade. All adult entertainment enterprises building facades, exteriors, and exits must generally resemble surrounding buildings. All window areas shall be covered or made opaque and no signs shall be placed in any window. Illustrations or other representations depicting partially or totally nude male and/or female figures shall not be posted or painted on any exterior wall of a building used for adult entertainment, or on any door or apparatus attached to such building.
3. Signs. All adult entertainment enterprises shall comply with the following sign regulations:
a. The amount of total allowable sign area shall not exceed a total of 60 square feet.
b. No merchandise or pictures of the products or entertainment on the premises shall be displayed on signs or in window areas or any area where they can be viewed from outside the building.
c. A one-square foot sign may be placed on the door to state hours of operation and admittance to adults only.
4. Parking and Lighting Regulations. On-site parking shall be required and regulated in accordance with CCC 18.10.560 and 18.10.561, and in addition shall meet the following requirements:
a. All parking areas must be visible from the fronting street. All on-site parking areas and premises entries shall be illuminated from dusk until dawn with a lighting system which provides an average maintained horizontal illumination of one footcandle of light on the parking surface and walkways. An on-premises exterior lighting plan shall be submitted to the Department with the site plan.
b. Access to the rear of the building shall be restricted by a fence, approved by the Director, to any persons other than employees and public officials during the performance of their respective duties.
5. Number of Permitted Uses per Structure. There shall be no more than one adult entertainment enterprise operating in the same building, structure, or portion thereof. In addition there shall be no other non-adult entertainment enterprise operating in the same building, structure, or portion thereof in which an adult entertainment enterprise is currently operating. [Ord. 94-218, § 8, 12-12-94.]
18.60.080 Administration and enforcement.
A. Administration. All applications for site plan approval under this chapter shall be made to the Cowlitz County Department of Building and Planning. It shall be the duty of the Director or his designee to process any application pursuant to this chapter, and to administer the provisions of this chapter. The Director shall prepare any forms necessary to administer the provisions of this chapter.
B. Final Site Plan Approval. The Director shall grant final site plan approval provided the application complies with the performance standards and requirements listed in CCC 18.60.070. As a condition of final site plan approval and before the issuance of any building permits, the applicant shall obtain an operating license from the Cowlitz County Sheriff’s Office.
C. Enforcement. It shall be the duty of the Director to see that this chapter is enforced through the proper legal channels. The County Building Official shall issue no permits for the construction, alteration, or repair of any building or part thereof, unless such plans and intended use of such building conform in all respects with the provisions of this chapter.
D. Fees. The fees for processing applications, appeals, and for other administrative actions under this chapter shall be from time to time established by resolution by the Board.
E. Violations – Penalties. It is a civil infraction for any person to violate this chapter or assist in the violation of this ordinance. Violations are subject to the provisions of Chapter 2.06 CCC. Any violation is a public nuisance. Each day a violation exists is a separate violation. Payment of any penalty imposed for a violation does not relieve a person from the duty to comply with this chapter.
F. Severability. If any section, subsection, sentence, clause, phrase, or any portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. The Board declares that it would have adopted this chapter and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. [Ord. 94-218, § 9, 12-12-94.]
18.60.090 Appeals.
A. A person aggrieved by the decision of the Director may appeal the decision to the Hearing Examiner, appointed pursuant to CCC 18.10.340, as amended. Any such appeal shall be filed in writing with the Department within 10 days of the issuance of the decision. The appeals shall specify the reasons therefor. The Director shall provide the Hearing Examiner with findings and documentation relating to the decision being appealed. The Hearing Examiner, following a de novo hearing, shall affirm, modify or reverse the Director’s decision. The appellant carries the burden of proof on appeal.
B. Upon filing of an appeal with appropriate fee, the Director shall set the public hearing before the Hearing Examiner on the matter. If the appeal is filed 20 days or more before the Hearing Examiner’s regularly scheduled monthly meeting, he/she shall hear the appeal at that meeting set by the Director. For appeals filed within 19 days of the regularly scheduled monthly meeting, the Hearing Examiner shall hear the appeal in the subsequent month.
C. Notice of the time, date and place of the hearing shall be sent to the appellant and the permittee by first class mail prior to the public hearing. Legal notice of the hearing shall be published in a newspaper of general circulation and the subject property shall be posted with the notice not less than 10 days prior to the public hearing.
D. Inclusion of Findings of Fact. The Hearing Examiner shall, in making an order, decision or determination, include in the written record of the case, the findings of fact upon which the action is based. Appeals of the Hearing Examiner decision shall be to a court of competent jurisdiction, pursuant to the Land Use Petition Act, Chapter 347, Washington Laws, 1995. [Ord. 95-193, § 36, 12-4-95; Ord. 94-218, § 10, 12-12-94.]
18.60.100 Amortization.
A. Adult entertainment enterprises which are nonconforming uses on the site on which they are located on the effective date of the ordinance codified in this chapter shall be discontinued within two years of the date on which the ordinance codified in this chapter becomes effective or upon the expiration of the leasehold period in existence as of the effective date of this chapter.
B. In the event a nonconforming adult entertainment enterprise proprietor determines that two years does not provide a reasonable period of amortization, then no later than 180 days prior to the expiration of the period, the nonconforming adult entertainment enterprise proprietor shall make application to the Planning Commission for an extension of time. Accompanying the application shall be a fee in the amount set by resolution by the Board. In determining whether or not to grant the extension, the Commission shall determine whether or not the harm or hardship to the nonconforming adult entertainment enterprise outweighs the benefit to be gained by the public from termination of the use. Factors to be considered by the Commission include the secondary adverse impacts on the enterprise to the neighborhood/community, the location of the enterprise in relation to sensitive land uses, initial capital investment, the existence or nonexistence of a lease obligation, as well as a contingency clause permitting termination of the lease, or whether a reasonable alternative use of the property exists. The action of the Planning Commission shall constitute a final decision which is appealable to the Board of Commissioners in accordance with CCC 18.10.310.
C. Adult entertainment enterprises which are nonconforming cannot be expanded, enlarged, or intensified through the special use procedures listed in the county’s land use ordinance, CCC 18.10.590. Any building containing a nonconforming adult entertainment enterprise may be maintained with only ordinary repair.
D. If an established nonconforming adult entertainment enterprise is destroyed by any natural or accidental cause, the provisions for rebuilding the structure(s) listed in the county’s land use ordinance, CCC 18.10.630, also do not apply. Any change in a nonconforming adult entertainment enterprise shall be to a use which is legally permitted within the zone in which it is located.
E. All nonconforming adult entertainment enterprises which are in existence as of the effective date of this chapter shall provide the Director with copies of their current leasehold document(s) which sets forth their existing leasehold time period or, in the case of a nonleasehold interest, the Director shall be provided other documents which show record of ownership. These documents shall be provided to the Director within six months of the effective date of this chapter. [Ord. 94-218, § 11, 12-12-94.]
18.60.110 Exceptions.
A. This chapter shall not be construed to prohibit:
1. A chance showing of a film, single film showing, or film showings in a clinical setting under the control of a licensed psychologist, psychiatrist, physician, or a registered nurse practitioner; or
2. Plays, operas, musicals, or other dramatic works which are not obscene; or
3. Classes, seminars, and lectures held for serious scientific or educational purposes; or
4. Exhibitions or dances which are not obscene.
B. Nothing in this chapter shall apply to the circulation of any such material by any recognized historical society or museum, the state law library, any county or city law library, the state library, the public library, any library of any college or university, or to any archive or library under the supervision and control of the state, county, municipality, or other political subdivision.
C. Nothing in this chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any statute of the State of Washington regarding public moral nuisances (Chapter 7.48A RCW), sexual conduct, obscenity or pornography (Chapters 9.68 and 9.68A RCW), lewdness, or obscene or harmful matter or the exhibition or public display thereof. [Ord. 94-218, § 12, 12-12-94.]
18.60.120 Public nuisance.
Notwithstanding any other provisions of Chapter 18.10 CCC, any violation of any of the provisions of this chapter is declared to be a public nuisance per se, which shall be abated by the Prosecuting Attorney by way of civil abatement procedures only, and not by criminal prosecution. [Ord. 94-218, § 13, 12-12-94.]
18.60.130 Effective date.
This chapter shall be effective immediately. [Ord. 94-218, § 15, 12-12-94.]